26 Jan 2020

An election results petitioner, Mr Entetse Boitshwarelo (44) of Mmashoro has told the court that the returning officer for the ward, admitted that some ballots which ought to be rejected.

Mr Boitshwarelo, who approached the Gaborone High Court seeking for recourse also contended that the ballots on which a voter made more than one cross inside the designated box on the ballot paper must have been rejected.

Mr Boitshwarelo had contested the Mmashoro council seat in the Serowe West constituency as an independent candidate and lost the ward to Mr Kgosiesele Kgosiesele of the Botswana Democratic Party (BDP) in the October 23, 2019 general election. 

The ward was also contested by the Umbrella for Democratic Change (UDC) and the Alliance for Progressives (AP).

The first round of the results indicated that, the BDP won with 583 votes, followed by the Independent Candidate (Mr Boitshwarelo) with 575, the UDC received 169 while the AP managed 116 votes.

 After the petitioner ordered a re-count, the number changed slightly with the BDP maintaining its lead with 582, Mr Boitshwarelo (Independent Candidate) followed with 573, UDC still got 169 and AP 115 votes respectively. 

 Giving evidence in chief on Friday led by his attorney, Mr Dick Bayford, the petitioner, indicated that prior to the  general election, candidates and all others that were to be engaged in  conducting elections were inducted by the Independent Electoral Commission (IEC) officials on the procedure of  elections.

Mr Boitshwarelo said prior to the general election, he attended two workshops at the Serowe Institute of Health Sciences conference room and one at Mmashoro under the tutelage of an IEC officer.

He said that the workshops covered all the material relating to the running of free and fair election. Mr Boitshwarelo told the court that his petition was centered on an issue relating to the casting of a valid vote.

According to the IEC, for a ballot to be valid, a voter must mark by making a cross inside the designated box on the ballot paper, and that where a mark (cross) is placed anywhere else on the ballot paper other than inside the designated box, the ballot must be rejected, said Mr Boitshwarelo.

Therefore, Mr Boitshwarelo contended that the Presiding Officer at Mmashoro council ward used her discretion and validated ballots that must have been rejected since they were not properly marked.

The ballots were marked on top of the party symbol, instead of the designated and therefore according to the teachings I had received from IEC officials, such ballots should not be accepted, said Mr Boitshwarelo.

“My complaint is that, the returning officer used her discretion to ballots that warranted to be rejected,” said the petitioner.

The presiding officer said when the mark was made on top of a symbol, the intention of the voter was clear, said Mr Boitshwarelo.

He said there was no need for assumption since the space for placing a mark on the ballot paper was well designated. I reject all ballots with misplaced marks, he said.

Mr Boitshwarelo said as a result of the discrepancy, the BDP candidate, Mr Kgosiesele who is the second respondent in the petition was not duly elected and therefore the Mmashoro council ward must be declared vacant.

He said after the inspection of the election material, it was discovered that eight votes with misplaced marks (marked on top of the symbol) were cast in his favor, while 18 such votes went to the BDP candidate.

After the inspection and identifying the ballots which he alleged were supposed to have been rejected, Mr Boitshwarelo argued that the numbers were now in his favor and therefore, the court would not have the difficulty in declaring him the winner.

 The decision made by the Returning Officer in declaring the second respondent as the winner of the Mmashoro ward must be declared null and void, said Mr Boitshwarelo.

Under cross examination by the IEC attorney, advocate Otsile Rammidi, Mr Boitshwarelo concurred that his petition was grounded on two issues; being that certain ballots had more than one mark inside the designated box while others were marked on the party symbol.

Mr Boitshwarelo also told the court under cross examination by the second respondent’s attorney, Mr Basimane Bogopa that he was a Councillor for the Mmashoro ward between 2009 and 2019.

 I won as an Independent candidate in 2009 and later contested under the BDP ticket in 2014 where I also emerged victorious, he said. 

After losing in the BDP Primary elections prior to the 2019 election, Mr Boitshwarelo again resorted to contesting as an Independent candidate.

Mr Boitshwarelo said counting the ballots where the marks were placed outside the designated box as valid contravenes the provision of the Electoral Act under section 71 and he had brought his dispute relating to such ballots before the court to make a lawful determination.

The first respondent (IEC) and second respondent did not present their cases in the form of oral evidence before the court.

Advocate Rammidi for the first respondent said ‘the first respondent will not be calling any witnesses and will move forward with final submissions.’

The petition trial was before a panel of three judges; namely Gaolapelwe Ketlogetswe, Omphemetse Motumise and Itumeleng Segopolo.

 Judge Segopolo said by order of consent by all the parties, the petitioner would present their final submissions on January 30, 2020 while the respondents would do likewise on February 3, 2020.

The court will convene on February 6, 2020 for oral presentation of the parties final submissions. ENDS